Academic Freedom on Trial

The previous academic year closed out in May to much drama and dissension on many American campuses. University administrators continued their assault against expressions of solidarity with Palestine or criticisms of Israel. They enacted policies restricting the exercise of dissent and instituting new constraints on the use of campus space; they imposed punitive sanctions, such as suspending or expelling students, terminating staff contracts, and declaring their own students and faculty personae non gratae. The university administrators approach to speech and dissent appeared to collude with the Biden administration’s military and political support for Isreal’s Gaza campaign. However, the election of Trump escalated and intensified the war on academic freedom with Washington imposing large scale funding cuts and interfering with university governance on a number of issues, from Diversity, Equity and Inclusion policies to the mobilization of the US Immigration and Custom enforcement (ICE) to target foreign students who expressed Palestine solidarity with visa terminations and deportation. This included, people, who – like the Columbia University student Mahmoud Khalil – were US permanent residents; Khalil was told “his presence in the US compromised foreign policy interests.” As with the Khalil case, criticism of Israel has been framed as antisemitic and sanctioned with detention and to the threat of deportation. Three months into the Trump presidency, Marco Rubio revealed that over 300 student visas have been revoked with their deportation pending.

There has been resistance to these policies from the Biden years to the present. The student encampments that spread through campuses in the 2023-2024 academic year called for disclosure and divestment in protesting the genocide and American complicity in it; their very presence was an expression of resistance to the sanctioning of Palestine solidarity speech on campus. As arrests, police harassment and university sanctions crushed these encampments, the 2024-25 academic year saw teach-ins, demonstrations, and other forms of protest and open dialogue, including by fighting antisemitism and islamophobia in advancing the twinned goals of anti-racism and anti-colonialism. Yet this resistance met with further sanctions. The Trump administration targeted foreign students and escalated these sanctions to an ICE policy of ideological deportation. This policy undoubtedly had a chilling effect, and many non-citizens withdrew from campus activism because of the fear of retaliation and repression. At the same time, a new front of resistance to this assault on academic freedom came to the forefront: the courts!

From Campus Activism to AAUP v. Rubio

In March of this year the NYU, Harvard and Rutgers chapters of the American Association of University Professors (AAUP) and the Middle Eastern Studies Association filed a suit against the Trump administration’s policies of ideological deportations (AAUP v. Rubio with the Knights First Amendment Institute as our legal team). In July the case went to trial with two weeks of hearings before Judge William G. Young in the U.S. District Court for the District of Massachusetts and we are now awaiting the judge’s ruling. I am on the Executive committee of the NYU chapter and one of the named professors who brought this suit as US citizens arguing that the ideological deportation policy interferes with our first amendment free speech rights, which include a concomitant “right to listen”. We argue that the constitutional principles at stake are so grave that they warrant an immediate injunction against the deportation policies. In addition to referencing cases (such as Khalil’s) that have been in the public eye, the submission to the court also referenced cases of non-citizen academics who have encountered threats to their speech. At the July hearings in Massachusetts, professors from Brown, Harvard and Barnard gave oral testimony about how they have stopped attending protests, stopped signing public statements related to Palestine and stopped engaging in other forms of public advocacy on Palestine. We assert that the chilling effect on these and other non-citizens’ exercise of academic freedom robs all of us, who are US citizen members of the academic community, of “non-citizens’ perspectives on a matter of significant public debate.” The freedom to listen, we argue, is central to the freedom of speech.

Listening Rights in Defense of Academic Freedom

The theory behind this case is colloquially described as one that upholds the “listening rights” implicit in free speech rights – or what some constitutional scholars describe as “the right to receive information and ideas”. Others have elaborated it as follows: “One of the ten amendments of the Bill of Rights, the First Amendment gives everyone residing in the United States the right to hear all sides of every issue and to make their own judgments about those issues without government interference or limitations.” One tradition of American free speech rights is narrowly individualist, focusing solely on the freedom of the speaker. However, there is also a more communitarian tradition of free speech rights and the choice between these traditions goes to the politics of law and what Duncan Kennedy describes as fundamentally “irreconcilable visions of humanity and society, and between radically different aspirations for our common future.” The premise of this case is that the more individualist conception fails to capture what is most enriching about free speech rights in the university and our common future. In contrast, the notion of “listening rights” points to the social life of these rights; a relational conception that has been much more vital to the issues at stake in the struggle over free speech in the university. We value academic freedom for a range of reasons but centrally it includes the creation of an environment of intellectual reciprocity where we speak and listen. Such an environment nurtures a space for advancing and challenging ideas, for experimenting with new hypotheses, for building on the ideas and insights of others – in other words for the give and take that is vital to studying and engaging. In this sense, academic freedom is also intertwined with the right to education or what AAUP has described as the freedom of access to higher education.

American academia is no utopia, and there have never been ideal speech conditions. The give and take of teaching and learning is itself informed by the hierarchies and privileges that characterize the societies within which our universities exist. Accordingly, questions of citizenship, race, class, sexuality, gender and many other social fault lines become central to an analysis of the ecosystem fostering or endangering academic freedom and its limits. One of the issues that emerged during the course of the trial is that even while the academic freedom of some has been under attack, others have not only enjoyed the freedom to speak and listen to everyone they want to listen to, but they have also enjoyed considerable power over the background conditions of speech. In an extraordinary development, Peter Hatch, a senior ICE official revealed under cross examination that the Trump administration developed a list of some 5000 people to investigate on the basis of a list compiled by the Canary Mission – the shadowy anonymous right wing website that develops black lists targeting faculty and student critics of Israel. Jewish Currents, the award winning progressive magazine of the Jewish left, reports that there is very little information about Canary Mission’s funders but those individuals and institutions that have been associated with the Canary Mission are not even in the academy. Nevertheless, as Hatch’s testimony at trial indicated, the Canary Mission enjoys extensive freedom in the academy. It is a reminder that although academic freedom is sometimes reified as an absolute good, it warrants distributional analysis. Some exercise a great wealth of academic freedom, while others operate with much greater constraints, or, to borrow a formulation from David Harvey, the accumulation of academic freedom by some (through the privatization of education for instance) has been precisely the means by which others have been dispossessed. Indeed the very notion of free speech as an absolute good has been a crucial mechanism for obscuring the power relations that have thwarted its enjoyment by those whose place in the academy remains precarious and perhaps there is no better example of this than the Palestine exception to free speech. In fact, the Boycott, Divestment and Sanctions (BDS) sought to address that precarity by interrupting a status quo that privileged some voices and silenced others. David Lloyd, Judith Butler and a host of other scholars supporting BDS have argued that the “academic freedom” upheld by the status quo “is a geopolitically based privilege rather than a transhistorical right.” Today after every school and university in Gaza has been bombed these inequities are even more stark.

The Courts Will Not Save Us, but…

Many have been struck by the momentum and intensity of the attack on Palestine solidarity speech on campus and, clearly, academic freedom had been corroded with a dizzying speed. This is partly explained by the fact that the Palestine exception was baked into the construction of American liberalism in the post-war period. Indeed the Biden administration’s support for genocide and concomitantly, the ferocity with which Palestine solidarity protest was persecuted in the Biden years set a hospitable stage for the repressions of the Trump era. Relatedly, and independently, it is also explained by the fact that over the last decade, the administrative apparatus for the Palestine exception in the academy was strengthened and refined through the concerted attacks on critical race theory that were undertaken by the first Trump administration. A repertoire of tactics was deployed against critical race theory (CRT): from executive gag orders to library book bans; restrictions on, and disciplinary procedures against, those who teach structural racism alongside heightened scrutiny and funding cuts of projects related to CRT. I say relatedly, because both targets reveal something not only about the precarious status of critical race theory and Palestine solidarity respectively, but they both also reflect and refract a deeper racial logic that is a dimension of American liberalism – or, to use a shorthand, they reflect and refract a white supremist dimension of American liberalism that preceded the current administration. The twinned racial logic that reverberates through the opposition to both Palestine solidarity and CRT is perhaps best captured by the designation of the Civil Rights Act as “an antiwhite weapon” and, concomitantly, its repurposing to defend Israel. Civil rights legislation designed to counter discrimination (such as Title VI of the Civil Rights Act) and concomitant institutional outlets (the Office of Equal Opportunity in many universities) are now being weaponized against people of color and those who support Diversity Equality and Inclusion(DEI) initiatives so that recognition of historic racism is coded as racist and illegal (as per Trump’s executive orders on DEI); with the notable  exception of expressions of anti-Israeli sentiment (which are now coded as antisemitism and a violation of Title VI).

Of course, for much of its history the American university has excluded and marginalized people of color through formal discrimination; when formal discrimination became illegal, de facto discrimination worked through admission policies that privileged the already privileged and a funding model that made higher education inaccessible to the vast majority of poor and working-class communities. These barriers to entry have been compounded by knowledge practices that have sanctified and preserved a Eurocentric canon and colonial episteme. The ideas and histories of marginalized communities, alternative knowledge systems and heterodox world views have struggled for air in the classroom, the library and in academic publishing houses. Moreover, in recent decades, the neoliberalization of the university has created a climate where too often the priorities of austerity policies have trumped scholarly priorities, and university administrators have been empowered at the expense of faculty and students. The struggles in American universities echo struggles across the world to simultaneously, resist within universities and against universities – situated as we are in the paradoxical positionality that Moten and Harvey describe where “it cannot be denied that the university is a place of refuge, and it cannot be accepted that the university is a place of enlightenment.”

It is a paradoxical position that rhymes with the contradictions of legal tactics that mobilize constitutional arguments with the risks and pitfalls of using the master’s tools. We filed AAUP v. Rubio knowing that the courts will not save us – like the American university, the American legal system is itself a product of the very structures and ideologies we seek to challenge; indeed the courts have contributed to the structures and ideologies that have effected accumulation by some, and the dispossession of others. Yet we also know that resistance is vital even if not in terrain of our choosing. We are now at the beginning of the 2025-26 academic year and the mood is one of tense trepidation with threats of further assaults on higher education in the air. Yet we are also buoyed by finding solace, and perhaps even hope, not in the structure of the university but in the resistance of the university community, from the student encampments to the strikes to this lawsuit. As Robin Kelley argues: “The University is not an engine of social transformation; Activism is.”